IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 22ND DAY OF MARCH, 2019 BEFORE THE HON'BLE MR.JUSTICE ASHOK G. NIJAGANNAVAR CIVIL REVISION PETITION NO.209 OF 2016 (Ex) BETWEEN:
J.M. Karisiddaiah S/o. late J.M. Chandrashekaraiah Aged about 64 years Working in K.H.B. Rajendranagar Shivamogga. …Petitioner (By Sri K.G.Nayak, Advocate) AND:
J.M. Channeshaiah S/o. late J.M. Chandrashekaraiah Aged about 73 years R/o. Upparkeri Shivamogga-577 202. …Respondent (By K.G. Sadashivaiah, Advocate for C/R1 Notice to R2 to R21 dispensed with) **** This Civil Revision Petition is filed under Section 115 of CPC., against the order dated 01.06.2016 passed in Execution Petition No.19/2009 on the file of the 1st Addl. Senior Civil Judge and CJM, Shivamogga dismissing the Execution Petition.
This Civil Revision Petition coming on for Final Hearing this day, the court made the following:
ORDER This petition is filed for setting aside the impugned order dated 01.06.2016 in Execution Petition No.19/2009 passed by Senior Civil Judge and CJM, Shivamogga.
2. The facts briefly stated are that petitioner had filed O.S.No.90/1991 against the respondent. The said suit was for partition and separate possession and the same was decreed on 04.8.1997. The respondent had challenged the said judgment and decree in RFA No.705/1997 and the same was dismissed. Thus, the judgment and decree passed in O.S.No.90/1991 has reached the finality. The decree holder-petitioner had filed FDP No.40/1997. Thereafter, the Execution Petition No.19/2009 was filed for execution of the decree passed in O.S.No.90/1991 wherein the respondent had filed the I.A.No.1 to stay the execution proceedings. The said I.A. was rejected. Thereafter, the trial Court without considering the earlier proceedings and the judgment and decree in O.S.No.90/1991 and by relying the judgment passed in O.S.No.217/1986 dismissed the Execution Petition. Being aggrieved by the said order, the petitioner preferred the Civil Revision Petition which was numbered as 249/2011. The said Civil Revision Petition was allowed and the impugned order dated 03.06.2011 passed for dismissal of execution was set aside. The Executing Court once again passed the impugned order dated 01.06.2016 dismissing the Execution Petition on the same grounds.
3. Learned counsel for the petitioner would strenuously contend that the Executing Court has no locus standi to go behind the decree. Despite the order passed in Civil Revision Petition No.249/2011, the Executing Court has once again passed the erroneous order for second time dismissing the Execution Petition on the similar grounds that decree holder has committed fraud in obtaining the decree. The reasons assigned for the dismissal of Execution Petition are not justified. In support of the said contention, the learned counsel has relied on the orders passed in Civil Revision Petition No.249/2011.
4. Per contra, the learned counsel for the respondent submits that even though the RFA preferred against the judgment and decree passed in O.S.No.90/1991 was rejected. The scheduled property involved in O.S.No.90/1991 and RFA No.772/2000 are same. Both the judgment debtor and decree holders were also parties in these two cases. In RFA No.772/2000, the Hon’ble Court has held that:
“The receiver shall take over all the properties of the Mutt and manage the same. In so far as the properties in possession of the defendants as on today are concerned, the same will continue to remain in possession of the defendants but, the same shall not be alienated by the defendants. The properties, which were in possession of the Mutt will be under the control of the receiver.
The learned counsel has further submitted that the observation made in RFA No.722/2000 goes to show that the petitioner is not entitled to the relief claimed in Execution Petition.
5. In view of the rival contentions, the only question that arises for consideration is whether there are valid grounds to set aside the impugned order passed by the Executing Court.
6. It is an admitted fact that the judgment and decree was passed in O.S.No.90/1991 by allowing the share of the plaintiff in the said suit property. The RFA was preferred and the same was dismissed against the said judgment and decree. Thereafter, the petitioner had filed the Execution Petition No.19/2009 which was earlier dismissed by the order dated 03.6.2011 against which the CRP No.249/2011 was preferred by the petitioner. The said Civil Revision Petition was allowed and the impugned order dated 03.6.2011 was set aside. Once again the Executing Court passed an order dismissing the Execution Petition on the similar grounds namely, fraud and maintainability.
7. In the case of Bhawarlal Bhandari v. M/s. Universal Mechanical Lifting Enterprises reported in AIR 1999 SUPREME COURT 246, the Hon’ble Supreme Court has held as under:
“a Court executing a decree cannot go behind the decree between the parties or their representatives it must take the decree according to its tenor, and cannot entertain any objection that the decree was incorrect in law or on facts. Until it is set aside by an appropriate proceeding in appeal or revision, a decree even if it be erroneous is still binding between the parties.
The aforesaid decision the Hon’ble Supreme Court applies to the facts of the present case. This is not a case in which the award decree on the face of it was shown to be without jurisdiction. Even if the decree was passed beyond the period of limitation, it would be an error of law or at the most a wrong decision which can be corrected in appellate proceeding and not by the executing Court which was bound by such decree. It is not the case of the respondent that the Court which passed the decree was lacking inherent jurisdiction to pass such a decree. This becomes all the more so when the respondent did not think fit to file objection against the award which was sought to be made rule of the Court.”
8. It is pertinent to note that the petitioner had preferred CRP No.249/2011 against the dismissal of Execution Petition No.19/2009 and this Court had passed the order in CRP No.249/2011 which reads as under:
“5. In my considered opinion, the impugned order is devoid of reasons. The Execution Court cannot go beyond decree unless it is established that the decree is a nullity in the eye of law. Therefore, finding of the Execution Court that decree in O.S.No.90/1992 was obtained by fraud, it should be set aside in the manner known to law. The decree in O.S.No.90/1992 cannot be impugned order.
6. Therefore, the impugned order is set aside. The learned judge of the Execution Court is directed proceed with execution petition in accordance with law. If the judgment debtor has any right to resist the execution petition, he can do so in the manner known to law.”
9. Despite the observation made in the aforesaid Civil Revision Petition, the Executing Court has once again ventured to pass an order dismissing the execution proceedings on similar reasons of fraud, maintainability etc. The Execution Petition is dismissed without assigning proper reasons and without considering the observation made in CRP No.249/2011. Thus, there are valid grounds to interfere with the impugned order.
10. Accordingly, the petition is allowed. The impugned order dated 01.06.2016 passed in Execution Petition No.19/2009 on the file of 1st Additional Senior Civil Judge & Chief Judicial Magistrate, Shivamogga is set aside. The learned Judge of executing Court is directed to proceed with the execution petition in accordance with law.
Sd/-
JUDGE SSD